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Wednesday, October 1, 2008Commission calls for debate on intelligence

September 30 2008 at 03:12PM

There is not enough debate on intelligence issues in South Africa, a special ministerial review commission said on Tuesday.

"This is not a healthy state of affairs in a democracy," it said in a statement accompanying the official release of its 303-page report on intelligence policy.

"Parliament, government and civil society groups should take steps to raise awareness and facilitate discussion on intelligence."

The commission's remarks come in the wake of a reported attempt by the National Intelligence Agency (NIA) last week to block the document's release into the public domain.

The three-person commission, chaired by former deputy safety minister Joe Matthews, was appointed in August 2006 by then intelligence minister Ronnie Kasrils.

One of Kasrils' final acts before leaving office last week was to declassify a public version of the report, from which sensitive information relating to intelligence methods had been removed.

The commission said on Tuesday it had reviewed intelligence legislation, policies, controls and institutional culture, focusing on areas in which the intelligence dispensation was not aligned with the Constitution.

It had identified areas in which executive and other control systems should be strengthened in order to prevent misconduct and abuse of power.

The report calls for a new White Paper on intelligence containing "more elaborate policy perspectives on a range of issues" including executive control, the institutional culture of the intelligence services, and ensuring respect for the Constitution and the rule of law.

It says the heads of the intelligence organisations must have a zero-tolerance approach to misconduct and illegality by their members.

Intelligence legislation, it says, should make it a criminal offence for intelligence officers to act in a politically partisan manner or interfere in lawful political activities.

The commissioners say in the report that they support NIA's view that the concept of "security threats" should be defined more clearly and that the agency should have a narrower mandate.

"More specifically, we agree with NIA's recommendation that its mandate should focus on terrorism, sabotage, subversion, espionage, proliferation of weapons of mass destruction, organised crime and corruption.

"In addition, we propose that the mandate should cover large-scale violence and drug trafficking."

The term "unconstitutional activity" as a security threat should either be defined properly or dropped.

Intelligence legislation should prohibit the use of intrusive methods where there are no reasonable grounds to believe that the target has committed or is about to commit an unlawful act.

The report also says intelligence services should be prohibited from using intrusive measures against people or organisations that are involved solely in lawful activity.

The document was submitted to Cabinet last week.

The other two members of the commission are former Speaker of the National Assembly Frene Ginwala, and security expert Laurie Nathan.

Sapa

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Submit your comment The "political meddling" by Judge Chris Nicholson that cost former president Thabo Mbeki his job should never have occurred.

This is the contention of Jacob Zuma's prosecutors, who have slammed the judgment that declared Zuma's prosecution for corruption invalid - and led to Mbeki's recall -as being riddled with legal and factual errors.

The State on Tuesday attacked Judge Nicholson's judgment on 16 different grounds, arguing he had not been required in any way to make his multiple inferences against Mbeki, his cabinet and the State.

According to the National Prosecuting Authority, Zuma's counsel, Kemp J Kemp SC, had shied away from pursuing the conspiracy claims when he argued that Zuma's prosecution should be declared invalid.

'One doesn't have to go into the issue whether he's right or wrong about it' Kemp confirmed to the judge that the "conspiracy claims" wrangle had "actually been laid to rest between us".

Kemp seemingly limited himself to the issue of the NPA's obligation to consult Zuma before re-charging him with corruption.

"We're not saying in this application that it (a political conspiracy) did happen.

"I just want to make that very clear, that wasn't the case we're making.

"Mr Zuma has consistently said that he is of the view that there is a political agenda behind his prosecution.

"And, M'Lord, once again, one doesn't have to go into the issue whether he's right or wrong about it," Kemp argued.

The NPA also argues that once Judge Nicholson decided to address Zuma's political conspiracy claims against Mbeki, his cabinet and current and former prosecuting bosses Mokotedi Mpshe, Vusi Pikoli and Bulelani Ngcuka in depth, he should have alerted the State.

Failing to do so, the State's legal team argues, amounted to a violation of the obligation to "hear all sides" of a dispute.

"As none of those emphatic rejections is far-fetched, clearly untenable or palpably implausible, this court should have accepted them and rejected Zuma's contentions to the contrary."

In addition to challenging the judge's ruling that Zuma's prosecution was invalid because the State had failed to seek his representations, the NPA has taken issue with the judge's findings that:

There should be a commission of enquiry into the allegations of widespread corruption relating to the arms deal and allegedly involving senior figures in government.

Mbeki's decision to dismiss Zuma as Deputy President was unfair and unjust because Zuma had not been given a chance to defend himself in a court of law.

Mbeki's decision to stand for the leadership of the ANC at the party's December 2007 conference in Polokwane was "controversial and not in accordance with the Westminster system we espouse".

The State argues that none of these findings "were issues raised for decision by the parties" and were not material to the resolution of Zuma's case.

"This court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties," the NPA said.

In addition to serving its legal challenge to Judge Nicholson's ruling in the Pietermaritzburg High Court, the State also delivered a copy to the Constitutional Court, where Mbeki is seeking to have the judge's findings set aside.

Mbeki and his legal team are to meet this week to discuss his application, which he stated he had pursued out of concern that the NPA would not challenge the findings made against him.

This article was originally published on page 1 of Pretoria News on October 01, 2008

The National Prosecuting Authority filed papers in the Pietermaritzburg High Court on Tuesday seeking leave to appeal against the judgment handed down by Judge Chris Nicholson earlier this month.

On September 12, Nicholson ruled in favour of African National Congress President Jacob Zuma's application to have the decision by the Scorpions to charge him declared unlawful.

In his judgment, Nicholson said Acting National Director of Public Prosecutions, Mokotedi Mpshe, should have obtained representation from Zuma before deciding to charge him.

Zuma faced a charge each of racketeering and money laundering, two charges of corruption and 12 charges of fraud related to the multi-billion-rand government arms deal.

He was charged in 2005, but that case was struck from the roll in 2006. He was recharged in December 2007.

Sapa

Comments by Sonny

Why does Judge Chris Nicholson appear to be a lose cannon in the judiciary.

Has he got a farm in the Midlands that he is protecting.

Or is it his non-racial cricket club.

Could it be the two books he has written.

He remains an activist on the bench. Posted by Sonny Cox at 7:19 AM 0 comments Links to this post Labels: NPA vs Judge Nickolson "Why was this case swept under the carpet?"

Cop's murder trial delayed

May 22 2007 at 04:31AM

By Alex Eliseev

A High Court judge has apologised to the family of top cop Anna-Marie Potgieter for a shock delay in her murder trial - now set to take place more than two years after her grisly murder.

The eight-month postponement, announced on Monday by Judge Max Labe, brought Potgieter's distraught sisters to tears.

They had been promised that the trial would start, but now say they have been let down by the police - to which Potgieter devoted 15 years of her life - as well as the judicial system.

'This is killing us emotionally' "This is killing us emotionally," said Potgieter's younger sister, Lorraine Esterhuizen.

Apart from the agony of facing the alleged killers in court at each postponement, the family have also been through three police investigating officers, two of whom have let them down, she explained.

By the time John Dhlomo, 22, and Justice Antony, 24, get their day in court in February 2008, they would have been awaiting trial in custody for two years - or 755 days.

Potgieter, 39, was killed on January 17, 2006 at a smallholding near Vereeniging, her police career snuffed out during an armed robbery. She was shot twice, her arm was broken and her body was covered in bruises.

The police captain, who worked for Benoni's Family Violence, Child Protection and Sexual Offences Unit, was weeks away from being promoted to superintendent. She made headlines for catching serial paedophile Peter Putter and rescuing a five-year-old dubbed Baby H.

'I notice people in the public gallery are very upset' Dhlomo and Antony were arrested within hours of the murder. In their indictment, the state claims the men shot Potgieter and dumped her naked body in a heap of rubbish near the house. Dhlomo was working for Potgieter's boyfriend, Pieter Brandt.

At Potgieter's funeral, Gauteng Police Commissioner Perumal Naidoo broke down. On Monday, it was the tears in the public gallery that drove Judge Labe to make an unusual address.

"I notice people in the public gallery are very upset. I know how important it is for people to reach closure," he said. "I really do apologise. I ask you to have the strength to be able to deal with this."

Judge Labe earlier explained that as he was the only judge at the Vereeniging High Court (sitting inside the magistrate's court), he was "engaged" with another case. "The court apologises for the delay... but there is nothing I can do about it."

Another problem was that at the eleventh hour, the two accused - up to now represented by one lawyer - turned against one other. A second lawyer will now have to be sought.

Judge Labe questioned why this had not been identified earlier, but did not receive a conclusive answer from the defence.

A state prosecutor at the court said the High Court was opened especially to ensure speedy trials. But the latest delay, the prosecutor admitted, was "not justice".

In November last year, the case was postponed for six months after the accused declined to plead guilty.

"I spoke to the investigating officer and he promised there was no way a High Court trial could be postponed again," Esterhuizen said.

The family were unhappy with the work of the first police investigator and asked for a replacement. The second worked hard, but, despite promises to the contrary, was sent overseas.

The third investigator has not been taking calls and the family once again feel helpless.

"She was a policewoman and a colleague," an emotional Esterhuizen said. "Why won't they help? Why has it been swept under the carpet?"

Esterhuizen said she knew this was not the only murder case in South Africa, but could not understand why "they are messing with the case and our emotions".

This article was originally published on page 1 of The Star on May 21, 2007

The CCMA is reluctant to exercise its powers to resolve a current labour dispute at Woolworths, union leaders said on Tuesday.

"That's why we are going to also target the Commission for Conciliation, Mediation and Arbitration in our programme of action," said the SA Commercial, Catering and Allied Workers' Union (Saccawu).

As a strike by Saccawu members at Woolworths entered its third week, deputy general secretary Mduduzi Mbongwe said they were not happy about the manner in which the CCMA had interpreted and ruled on their right to picket.

The department of labour was also to blame, he said.

Some 5 500 Saccawu and affiliate members are expected to take part in the national day of action planned for October 3. Protesters would go to the Business Unity SA offices in Sandton.

Some of our members in Durban would march to the CCMA offices.

Saccawu demanded access to company premises for union officials to engage in activities, and for stop order facilities to deduct union fees from its members.

Mbongwe said the company had been abusing the CCMA, the labour department and the Labour Court in "frustrating" the workers' right to belong to a union of their choice.

"Woolworths' actions undermine the spirit of the Labour Relations Act (LRA) and social dialogue within the country," he said.

"These rights are accorded to a sufficiently representative union in terms of chapter three of the Labour Relations Act (LRA). The LRA does not specify a percentage for sufficient representativity."

The present strike was proceeding on a no work, no pay basis and Woolworths indicated it was open to negotiate and was prepared to allow another verification process to take place.

Mbongwe said workers were being exploited and subjected to meagre wages. He said 15 percent of the workforce constituted sufficient representation in the retail sector, given high levels of different forms of employment as well as benchmarks established in the engagement with other employers.

Woolworths on the other hand, insists on 30 percent as sufficient representativity and wants to consider signed stop-order forms that are not older than three months, said Mbongwe.

The SA Communist Party expressed "shock and dismay" at the manner in which the management of the company had continued to treat the workers and the union.

"The management of Woolworths has continued to abuse our legal system by challenging all the rulings that went against them on the issues of the recognition of the trade union, thus suppressing the constitutional right to do so," it said in a statement.

The party called on government and the labour department to take a firm stance against such a "blatant disregard of our laws".

Both the SACP and the Young Communist League (YCL) pledged their support for the march on October 3, and urged its members to join lunch-hour pickets in all Woolworths stores.

"Stores such as Woolworths record billions in profits whilst the living standards of the workers are driven further into the ground," said the league.

It accused the company of applying apartheid tactics of repression and denying workers their constitutional rights of belonging to a union.

Sapa Posted by Sonny Cox at 11:04 PM 0 comments Links to this post Labels: SACP vs CCMA Now for the real battle

NIC DAWES: COMMENT - Sep 29 2008 00:00

It is difficult, when punched in the guts, to take a deep breath, although air is what you most fervently desire. Exhortations to stay calm seem to float in from some impossibly distant and irrelevant realm.

Thabo Mbeki seemed to manage it in his resignation speech on Sunday, although people who know him well could see the rage and humiliation he was holding in check.

Gwede Mantashe, too, did a plausible job of looking unruffled on Tuesday as Mbeki's staff took advantage of their waning time in office to glory in the virtual implosion of the Cabinet.

The rest of us may need to spend a little more time in political Pilates classes before we can stand up to the pummelling the ANC has been delivering to our basic belief about how power is exercised in this country. Not since the early Nineties, when we learned to live constantly on the cusp of transcendent success or bloody disaster, has there been such deep anxiety and such utter bewilderment at every level of society.

To be sure, it is people who identified closely with the Mbeki project of modernisation, racial transformation and the sovereignty of the technocrats, who are most at sea. They are alienated from the party that is the cradle of their political and social identity and are angry and powerless in an unfamiliar and deeply disturbing way.

But many of those who sought Mbeki's ouster, and with it the establishment of a government they see as closer to the founding ideals of the ANC, are worried too. They fear not just the gathering anger of Mbeki's fight-back, but also the rampant populism, rogue intelligence agencies, arson and violence in the ANC branches that the long campaign against Mbeki has nurtured and unleashed.

Despite rising frustration over service delivery and increasing detachment from politics among better-off minority groups, South Africans seem, generally, to have accepted life under a limited democracy. They trust the internal mechanisms of the ANC, subject to very limited modification by the bureaucracy or Parliament and occasionally checked by the courts, to keep life on the commanding heights ticking. If the questions that small business owners, technical workers, cleaning staff, university professors and waiters were asking journalists this week are anything to go by, that trust has crumbled away almost overnight.

"What is going to happen to our country?" was the standard refrain, varied only with, "should we be packing?"

In that sense Jacob Zuma's "coup" was just that -- a blow.

But there will be plenty to welcome when we all get our breath back. Not the new, more democratic ANC that Zuma's supporters keep promising us, nor, necessarily, better policies or a government more in tune with its people.

Our main gain is the space that has been opened for the real battle to determine the future. For too long we have been distracted by a conflict of shadows.

Mbeki's most effective ruse, and one that he was able to pull off for far too long, was the creation of the impression that he was the true custodian of good governance and the champion of democratic institutions.

Too many of us, for too long, bought this version, and its corollary, that where he undermined democracy, he did so to save it.

Meanwhile, Zuma, who seemed to go out of his way to confirm his image as the corrupt, bumbling, sexually incontinent creature of comprador business and the loony left, provided cover for Mbeki's manifest weaknesses.

Fortunately now the phony conflict between the managerialist and the peasant is over, bar what will no doubt be some prolonged and unpleasant shouting.

But the real threats this shadow conflict raised have finally made it possible for a defence of the Constitution and its basic democratic values to emerge, not just from the rightward margins of our politics but from within the ANC and civil society.

It is a truism that civil society struggled to define its role in the immediate afterglow of the transition to democracy. The ruling party seemed to have filled up all the space in national life available for those who wanted more attention paid to the concerns of the poor and those who wanted a more liberal, open social and economic dispensation.

Even as the austere financial regime of the late Nineties brought increasing disappointment for the left and as evidence mounted that powerful figures in the ANC were willing to subvert institutional independence and civil liberties, for many organisations and individuals vocal opposition seemed embarrassing, or impossible, except in the terms made available within the tripartite alliance.

That may be why so many anti-poverty campaigners, for example, shared platforms and messages with Cosatu, which lent a patina of struggle respectability to their calls for a more redistributive economic policy.

Concerns about the independence of the judiciary, freedom of the media, corruption and the abuse of state power were mainly voiced in the press, opposition parties and think-tanks such as the Institute for Democracy in South Africa and the Institute for Security Studies. These worries were too easily dismissed from within the ANC as liberal shibboleths.

The brutal endgame between Mbeki and Zuma has stripped us of that critical coyness. Calls for the creation of a new political party, or at least a campaign to spoil ballots, are being formulated in mainstream civil society and the upper ranks of the ANC itself.

Hugh Glenister's campaign to save the Scorpions represents a new kind of citizen activism, and the very different, but equally powerful refusal of state figures such as Vusi Pikoli, Chris Nicholson and the judges of the Constitutional Court to be politically manipulated, is evidence that democracy still has powerful resources to draw upon in this society.

Perhaps we should thank our errant leaders for this: even as their battles threatened our most basic values, they reminded us of what those values are.

Comments by Sonny

A Coup or the beginning of a 'Cultural or Ethnic' Revolution. Posted by Sonny Cox at 10:54 PM 0 comments Links to this post Labels: Exit Thabo Mbeki. NPA: Zuma dismissal irrelevant

GIORDANO STOLLEY | JOHANNESBURG, SOUTH AFRICA - Sep 30 2008 18:15

Judge Chris Nicholson had no grounds to rule on the establishment of an arms-deal inquiry or to comment on then president Thabo Mbeki's decision to dismiss Jacob Zuma as deputy president of the country, according to the National Prosecuting Authority.

In its application to the Pietermaritzburg High Court on Tuesday for leave to appeal against the judgement handed down by Nicholson earlier this month, the NPA said that neither issue was relevant to Zuma's application to have the decision to charge him declared unlawful.

On September 12 Nicholson ruled in favour of the African National Congress president and said that Acting National Director of Public Prosecutions, Mokotedi Mpshe, should have obtained representation from Zuma before deciding to charge him.

Zuma faced a charge each of racketeering and money laundering, two charges of corruption and 12 charges of fraud related to the multibillion-rand government arms deal.

He was charged in 2005, but that case was struck from the roll in 2006. He was recharged in December 2007.

In its papers filed in court on Tuesday, and referring to Nicholson's judgement where he said Mbeki's decision to run again for president was "at its lowest, controversial and not in accordance with the Westminster system we espouse in this country", the NPA said this was irrelevant to the case being argued.

It also said that Nicholson's judgement, in stating that "the decision of Mr Mbeki to dismiss the applicant from his office as deputy president of the Republic of South Africa was unfair and unjust because the applicant had not been given a chance to defend himself in a court of law", was not an issue raised by either the state or Zuma's legal team.

"None of those issues were material to the resolution of the case. This court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties."

In its application the NPA stated 16 grounds that it has for appeal, including the fact that it believes that "the court erred in holding that the NDPP had to request and consider representations from the applicant" prior to the 2005 decision by former NPA boss Vusi Pikoli and the December 2007 decision to prosecute Zuma.

The NPA maintained in its papers that there had been no review of the decision to prosecute Zuma but that it "was a fresh decision taken after the prosecution started by the Pikoli decision had been terminated by the order of Msimang J striking the matter from the roll in September 2006."

The NPA, in the papers signed by state prosecutor Anton Steynburg, claimed the court had "committed an irregularity" when Nicholson held that a commission of inquiry should be established to investigate the arms deal.

It also said that Nicholson had erred when he ruled "that the involvement of the former minister of justice and constitutional development Penuell Maduna in the events leading to the August 2003 decision by the former NDPP Bulelani Ngcuka not to prosecute the applicant despite there being a prima facie case of corruption against the applicant, and in the events leading to Mr Ngcuka's May 2004 decision to withdraw the charges against Thomson-CSF (Pty) Ltd [now Thint (Pty) Ltd], was most regrettable andconstituted a serious criminal offence".

The NPA pointed out that Zuma's founding affidavit "contained numerous accusations of bad faith which were not only entirely irrelevant to the applicant's causes of action but in many instances were based on hearsay evidence or no evidence at all.

“The NDPP consequently brought the application to strike out those parts of the founding affidavit".